Lack of coal-waste oversight is under fire after giant spill

A massive North Carolina coal waste spill into a major river is increasing pressure on the Obama administration to start policing the more than 1,000 such waste storage sites across the nation.

The federal government doesn’t regulate the disposal of “coal ash,” the dustlike material that’s left over when pulverized coal is burned to fuel electrical power plants. Pennsylvania leads the nation in coal ash production, followed by Texas, Indiana, Ohio and Kentucky.

Coal ash can contain toxic materials such as arsenic and selenium, but the Environmental Protection Agency has left it to the states to decide what rules to put in place. The result has been an inconsistent patchwork of regulations that the EPA acknowledges is full of gaps.

The agency promises to come out with long-delayed rules by the end of the year, but it’s likely to leave the enforcement in the hands of the states.

State coal ash enforcement is under particular fire in North Carolina after a Duke Energy spill this month poured coal ash into the Dan River. The U.S. Fish and Wildlife Service has estimated that up to 39,000 tons of the waste traveled 80 miles downstream and coated the river bottom in a layer of sludge. It’s endangering aquatic life in the river, and health officials warn against eating fish caught in the contaminated stretch.

“If this doesn’t prove you need to have a strong federal regulation, then what proof does it take?” said Frank Holleman, attorney for the Southern Environmental Law Center, which has challenged state oversight of coal ash dumps.

The U.S. Justice Department has launched a criminal probe of North Carolina’s environmental agency in the wake of the spill, with state regulators receiving subpoenas to appear next month before a federal grand jury. Among the subpoena demands: State officials must bring any records they have of gifts from Duke Energy.

Other states also have come under criticism for their coal waste oversight. The environmental group Earthjustice has singled out Texas and Georgia as having particularly lax regulations, and the group documented 208 coal ash storage sites in 37 states with contamination or spills.

According to the EPA, without sufficient protection the contaminants in coal waste can leach into groundwater and migrate to sources of drinking water. The agency identified more than 40 wet ash storage units nationwide as having “high hazard potential,” meaning they’re sites where the failure of the impoundment probably would lead to the loss of human life.

Coal waste burst into public consciousness in 2008, when a dike rupture at a Tennessee power plant spilled more than 1 billion gallons of ash slurry that covered 300 acres and flowed into two rivers. The EPA subsequently proposed the first federal rules for handling coal ash, but the Obama administration has delayed implementing them for the past four years.

That led environmental groups to sue and a judge to order the EPA to come up with a timeline. The agency said it would release new regulations by the end of this year, but it’s unclear what the rules are going to be.

One of the two options the EPA is considering is to declare coal ash a hazardous waste. That would require special handling and disposal of the waste, with direct oversight by the EPA. The other option would impose a less stringent set of new federal rules, with enforcement through states and citizen lawsuits.

The industry has been fighting hard against the hazardous designation, and it doesn’t think the EPA will do it.

“We do expect that it will be designated as nonhazardous, so that’s the general assumption that we’re working with,” Keith Trent, Duke Energy’s chief operating officer, said in a call with investors last week.

Scott Segal, a lobbyist who represents coal-burning utilities and other energy firms, said designating the coal ash as hazardous would be a blow to recyclers who turn the waste into materials such as cement and wallboard.

Coal waste is high in volume and low in toxicity, Segal said, and doesn’t fit the hazardous designation. Coal mining and utility companies say such a designation brings with it costly requirements.

“My own personal opinion is that the agency will not embrace a hazardous determination, because if they did they would be undermining billions of dollars’ worth of recycling, they would be placing even more electrical power systems in peril and they would be increasing the cost of energy,” Segal said.

Southern Environmental Law Center attorney Holleman said it was in the companies’ best interest to clean up coal waste because it insulated them from risk and protected their reputations. It’s been proved that state regulators can’t be trusted to make that happen without a strong federal rule, he argued.

In an emailed response to questions, the EPA wouldn’t explain the reason for its four-year delay in implementing coal waste regulations or suggest whether it plans to leave enforcement to the states.

The EPA said it was committed to finalizing the rules by Dec. 19 and that the regulations “would ensure stronger oversight of the structural integrity of impoundments in order to prevent future accidents.”